Maxwell Hills | September 28, 2022 | Prenuptial Agreement
For couples considering taking the plunge and getting married, a prenuptial agreement, prenup for short, is often an important step to protect each spouse’s assets and financial interests. But what exactly is a prenup? How do you get one? And do they even hold up in court?
In this article, we’ll answer all your questions about prenuptial agreements in California.
What is a Prenuptial Agreement?
A prenuptial agreement, or prenup, is a legally binding contract between two people before marriage. The purpose of a prenup is to protect each spouse’s assets and income in the event of a divorce or death.
A prenup can also spell out how property will be divided if the marriage ends in divorce. And in some cases, a prenup can even waive a spouse’s right to alimony.
A prenup must be in writing and signed by both parties to be valid. At least two people must also witness it.
It’s important to note that a prenup cannot include any illegal provisions against public policy or that would encourage divorce.
Prenuptial Agreements in California – What You Need to Know
In California, prenuptial agreements are governed by the state’s Uniform Premarital Agreement Act (UPAA). The UPAA sets forth the requirements that must be met for a prenup to be valid and enforceable.
Some of the key provisions of the UPAA include:
- Both parties must voluntarily agree;
- The agreement must be in writing and signed by both parties;
- At least two people must witness the agreement;
- Each party must disclose all of their assets and income;
- The agreement cannot include any illegal or against public policy provisions.
If you’re considering getting a prenup, consulting with an experienced family law attorney is essential to ensure that your agreement meets all the requirements of the UPAA.
Scope of Coverage for Prenups in California
Prenups in California can cover just about any topic related to the financial aspects of marriage. This includes, but is not limited to:
Child Support and Custody
In the event of a divorce, a prenup can spell out how child custody and support will be handled. However, any provisions related to child custody and support can be modified by a court if it is in the child’s best interests. One thing to consider is that a prenup can protect their inheritance rights if you have children from a previous relationship. This is important to discuss with an attorney ahead of time and can be reflected in the prenup agreement.
Property Division
A prenup can also determine how property will be divided in the event of a divorce. This includes assets (e.g., homes, cars, savings) and debts (e.g., credit card debt, student loans). Keep in mind that a court can modify any provisions related to property division if it finds that the division is not fair.
Alimony Payment
In California, a prenup can waive a spouse’s right to receive alimony payments after a divorce. However, the waiver must be made voluntarily and fully aware of its implications. Additionally, the waiver cannot be unconscionable, meaning it cannot leave one spouse without enough resources to support themselves.
Provision for Divorce
A prenup can also include provisions related to the grounds for divorce. For example, a couple may agree to only divorce if they both agree. Or, they may decide to only divorce if one spouse commits adultery or abandons the marriage. Either way, any provisions related to divorce must be made voluntarily and with full knowledge of their implications.
Frivolous Requirements
A prenup cannot include any illegal or against public policy provisions. Additionally, the agreement cannot have any frivolous requirements, such as a weight limit or banning certain foods. Finally, the contract cannot be unconscionable, meaning it cannot leave one spouse without enough resources to support themselves.
The scope of what can be included in a prenuptial agreement is quite broad. However, there are some limitations. Therefore, it is essential to consult with an experienced family law attorney to ensure that your agreement is valid and enforceable.
Commonly Asked Questions About Prenups
Q: Do I need an attorney to create a prenuptial agreement?
A: While you are not required to have an attorney to create a prenuptial agreement, it is highly recommended. An experienced family law attorney can help ensure that your agreement meets all the legal requirements and protects your rights.
Q: How much does a prenuptial agreement cost?
A: The cost of a prenuptial agreement will vary depending on the complexity of the agreement and the number of hours required to draft it. However, typically, the cost ranges from $1,500 to $5,000.
Q: How long does it take to create a prenuptial agreement?
A: The amount of time it takes to create a prenuptial agreement will vary depending on the complexity of the agreement. Typically, it takes two to six weeks to draft an agreement.
Q: What happens if I don’t have a prenuptial agreement?
A: If you do not have a prenuptial agreement and you get divorced, the court will determine how to divide your property and assets. Additionally, the court may order one spouse to pay alimony to the other. Finally, the court will determine custody and support arrangements if you have children from a previous relationship.
Q: Can I change my prenuptial agreement after I’m married?
A: Yes, you can change your prenuptial agreement after marriage. However, any changes must be made voluntarily and fully aware of their implications. Additionally, the agreement cannot be unconscionable, meaning it cannot leave one spouse without enough resources to support themselves.
Q: Do prenuptial agreements hold up in court?
A: Prenuptial agreements are generally enforceable in court. However, there are some circumstances where a court may find an agreement invalid. For example, if the agreement was not entered into voluntarily or if it is unconscionable. Additionally, any provisions that are illegal or against public policy will not be enforced by the court.
Consider a Prenuptial Agreement in California
Deciding to marry is a big decision and one that should not be taken lightly. If you are considering marriage, you may consider creating a prenuptial agreement. Creating a prenuptial agreement is not required, but it is highly recommended. By reviewing the questions above, you can better understand what a prenuptial agreement is and how it can benefit you.